Wildermuth v. Cole

• Decision Date: 08 November 1889
• Citation: 43 N.W. 889,77 Mich. 483
• Court: Michigan Supreme Court
• Parties: WILDERMUTH v. COLE.

43 N.W. 889

77 Mich. 483

WILDERMUTH v. COLE.

Supreme Court of Michigan

November 8, 1889

Error to circuit court, Shiawassee county; WILLIAM NEWTON, Judge.

Action of trespass on the case, brought by Charles G. Wildermuth against William Cole, sheriff of Shiawassee county, for levying upon and selling certain intoxicating liquors, under an execution issued against the property of said Wildermuth on a judgment rendered against him in an attachment suit. Judgment for defendant. Plaintiff brings error.

Edmund Haug, for appellee.

LONG J.

The plaintiff, on November 15, 1888, was engaged in business as a retailer of intoxicating liquors at Owosso, Shiawassee county, this state. The defendant, as sheriff of that county had placed in his hands on that day a writ of attachment issued out of the circuit court of that county, against the goods, chattels, and property of the plaintiff; and by virtue of which he levied upon the stock of liquors of the plaintiff, and subsequently sold them, to satisfy the execution issued upon the judgment rendered in the attachment suit. It is admitted that the liquors are of the value of $536. It is also admitted that the attachment was regular in form; and the proceedings in attachment are in no manner questioned. The plaintiff filed a petition for a dissolution of the writ, and failed in that proceeding. The cause in attachment proceeded to trial upon the merits, and the plaintiff in the writ obtained a judgment against the plaintiff in this suit for the sum of $334.39 damages, and costs taxed at $64.50. This action is brought in trespass against defendant Cole, the officer executing the writ, for the value of the intoxicating liquors taken under the writ. The cause was tried before a jury, and the court directed verdict for the defendant. Judgment being entered on the verdict in favor of defendant, the plaintiff brings the case here by writ of error. The contention of counsel for the plaintiff is that the sheriff could not legally levy upon and sell intoxicating liquors under attachment and execution. It is not claimed that the liquors levied upon were exempt under any statute of this state, but that, inasmuch as the sheriff had not paid the tax and filed the bond required by the liquor law from all persons selling intoxicating liquors that the levy and sale is void. Section 1 of the Liquor Law of 1887 requires all persons engaged in the business of manufacturing, selling, or...